Temporary Restraining Order: How much do you know about TRO?

If you want to have a foothold in the electric business circle, you must first understand some professional terms and hidden “seller rules”, and master certain countermeasures, so as to have a basic guarantee for the development of the store. Today, Mai Jia supports to introduce to you the temporary ban on the electric business circle.

TEMPORARY RESTRAINING ORDER, abbreviated as TRO, refers to the compulsory measures issued by the people’s court at the request of the plaintiff to force the infringer to temporarily stop the infringement, and the court orders one party to act or not to act. Its purpose is to stop the upcoming infringement and objectively protect the rights and interests of consumers.

Temporary Restraining Order General conditions:

Generally speaking, the validity period of TRO is fourteen days, and the merchant will not receive any notice from the court from the time when the plaintiff files a lawsuit until the court issues a temporary injunction. However, merchants need to pay attention to one thing. Under normal circumstances, when a merchant receives a temporary ban, the store will be frozen or even frozen. As a merchant, it is generally unable to respond to the temporary injunction. The main reason for this problem is that the evidence and conditions of complaints prepared by the obligee before prosecution are very sufficient. The following is a detailed explanation of the conditions for the court to issue a temporary injunction.

1. The possibility of the plaintiff winning the case depends on the evidence of the accusation.

2. The damage of the obligee’s rights and interests is beyond remedy.

3. Compared with the damage caused to the plaintiff by not issuing TRO, the damage caused to the plaintiff by issuing temporary injunction is less.

4. The defendant’s behavior needs to reach the level of damaging public rights and interests, such as the counterfeiting of products.

Basic features:

1. In essence, a temporary injunction is the effect of one party’s unilateral accusation against the other party, and it is a mandatory temporary injunction issued by the court without involving the opinions of the other party. From the perspective of equity, temporary injunctions have strict requirements on the obviousness of infringement, the irremediability of infringement losses and the compulsion of injunctions.

2. Except in special circumstances, generally speaking, the validity period of TRO does not exceed fourteen days. During this period, if the defendant has any doubt, the court will ask the defendant for an explanation of not promulgating TRO according to the plaintiff’s complaint. Even if the defendant refuses to reply or the reply is insufficient, the court has the right to directly issue TRO, and after relevant trial procedures, the court also has the right to decide whether to issue a Permanent injunction, that is, permanent intervention.

3. The formal way for the defendant to apply to the court for a temporary injunction is to reply in writing through consultation with the plaintiff.

4. The plaintiff must provide a legally effective liability guarantee before the appeal, and the specific amount shall be drawn up by the court according to the case. Applicable object: Temporary injunctions are mainly applicable to infringers suspected of infringement, third-party service providers like Alibaba, and financial institutions like banks and payment processing institutions.

Prohibition requirement

1. Infringed businesses are prohibited from continuing to operate. It mainly prohibits any infringement, including counterfeiting, destroying records and transferring assets.

2. Third-party service providers are prohibited from continuing to provide services to the defendant, or from freezing funds and helping to transfer funds.

3. No matter where the infringer and the third-party service provider are located, they need to provide the plaintiff with relevant documents including contact information, sales records and bank account records.

Response plan:

A, how to correctly judge whether infringement?

1. The description of commodity names is mainly the infringement of commodity words, including trademarks and names, and the key introduction of commodities.

2. The patent of commodity pattern is mainly the infringement of pattern patent, including commodity icon and appearance shape. For example, in the “Emoji infringement case”, the trademark and pattern creativity were stolen or similar, and so on.

Second, out-of-court settlement

1. Whether to refuse to settle? First of all, if the frozen amount is large, the settlement money will be determined according to the proportion of the original amount, which is definitely lower than the loss of giving up completely. Therefore, if the frozen amount is large, it is necessary to accept the settlement. In addition, the plaintiff always reserves the right to sue. If the defendant refuses to settle, the defendant’s shop, account number and other collection accounts are at risk of being frozen continuously.

2. Whether there is the risk of a second complaint after the settlement “Effective Date” is the effective time of the settlement agreement, which is determined to prevent the defendant from being accused of infringement before the settlement agreement takes effect. Therefore, it also reduces the risk of the infringer being maliciously accused of a second complaint to some extent.

Iii. Reconciliation procedure

1. First of all, it is necessary to collect and sort out the settlement information of the defendant, and the lawyer will give the feedback to the customer after completing the evaluation.

2. The defendant signed the settlement contract and paid the fee.

3. Deliver the settlement contract to the opposing lawyer by mail or telephone, which shows that the lawyer handles the case on behalf of the defendant.

4. The lawyers of both parties negotiate and need to keep in touch with customers at the same time.

5. After the settlement agreement is reached, the defendant needs to pay the amount of contract compensation.

6. The plaintiff’s lawyer submits the platform’s withdrawal letter, and the court issues a unfreezing instruction, and the platform unfreezes the account and releases the frozen money.

Fourth, other litigation procedures

1. If the funds frozen in the defendant’s account are seriously inconsistent with the actual degree of infringement, or there are problems such as false accusations, they can be directly transferred to lawyers for comprehensive evaluation.

2. If the defendant has the possibility of winning the case, or all the expenses, including legal compensation and lawyer’s fees, are far less than the frozen amount, Mai Jia supports the proposal to actively respond to the lawsuit here.

Five, the official advice how to deal with TRO:

1. First, please try to ask an American lawyer who is familiar with TRO to determine the scope of the temporary injunction.

2. Contact the lawyer in order to adjust the litigation judgment as much as possible or find other shortcomings.

3. Try to negotiate with the plaintiff’s lawyer to communicate other solutions and try to restore the store to operation as much as possible.